Kearney v. Okemo Limited Liability Co.

          OPINION AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 58)

          Geoffrey W. Crawford, Judge.

         Plaintiff Brian J. Kearney brings this personal injury action against Defendants Okemo Limited Liability Company, doing business as Okemo Mountain Resort, and the United States Ski and Snowboard Association ("USSA"), alleging negligent installation of safety netting during a downhill alpine ski race in February 2015. Defendants seek summary judgment on the ground that Plaintiff signed a release prior to his participation in the race. The court heard argument on Defendants' Motion on July 25, 2016. For the reasons discussed below, Defendants' Motion for Summary Judgment (Doc. 58) is DENIED.

         Background

         The court considers only those facts relevant to the pending motion.

         Plaintiff was seriously injured while competing in an amateur downhill ski race at Okemo Mountain Resort ("Okemo") in Ludlow, Vermont in February 2015. USSA sanctioned the competition. To be eligible to participate, individuals had to have a USSA membership and proper ski equipment. Participants also had to conduct a visual inspection of the course and take at least two official training runs prior to the race.

         Plaintiff became a USSA member on December 16, 2014 for the 2014-2015 ski season through U.S. S A's website. As part of the U.S. S A membership registration process, registrants were required to acknowledge and agree to be bound by the terms of USSA's Assumption of Risk and Release of Liability agreement (the "release"). (Doc. 61-16 at 10-11.)

         The release contained the following exculpatory provision:

Member hereby unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, or to any other person or property, for any loss, damage, expensive, or injury (including DEATH), suffered by any person from or in connection with Member's participation in any Activities in which USSA is involved in any way, due to any cause whatsoever, INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.

(Doc. 58-5 at 2.) As used in the release, "USSA" referred to USSA and "its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators." (Id.) The term "Activities" included "skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, adaptive, and snowboarding competitions and clinics." (Id.) The release also contained a choice-of-law provision, which stated that it would be "construed in accordance with, and governed by the substantive laws of the State of Colorado, without reference to principles governing choice or conflict of laws." (Id.)

         Analysis

         I. Summary Judgment Standard

         A party is entitled to summary judgment when it shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Material facts" are those that, under the applicable substantive law, "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a "material fact" is "genuine" only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. A party opposing a properly pleaded summary judgment motion "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Id. at 256 (citations omitted). If the nonmovant offers evidence that "is merely colorable, or is not significantly probative, summary judgment may be granted, " id. at 249-50 (citations omitted), but "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994) (citation omitted).

         II. Plaintiffs Acceptance of Click-Wrap Release

         The type of release at issue in this case is commonly referred to as a "click-wrap" agreement.^[1] See Feldman v. Google, Inc., 513 F.Supp.2d 229, 236 (E.D. Pa. 2007) (leading case discussing click-wrap agreements). Courts routinely find these types of agreements enforceable. See Id. at 236-43; see also Fteja v. Facebook, Inc., 841 F.Supp.2d 829, 837 (S.D.N.Y. 2012); TradeComet.com LLC v. Google, Inc., 693 F.Supp.2d 370, 377-78 (S.D.N.Y. 2010). Because the click-wrap technology does not permit the customer to continue to use the website unless he or she clicks on the required box on the screen, courts have accepted proof of use at the site as evidence of the customer's agreement. See Feldman, 513 F.Supp.2d at 232-33, 235; Fteja, 841 F.Supp.2d at 834-35, 841.

         Plaintiff admits that he applied for a USSA membership online, but states that he has no recollection of seeing or acknowledging the release. (Doc. 61 -27 at ¶ 11.) He attempts to create a factual dispute by asserting that Defendants have yet to produce a release signed or initialed by him. However, unlike when a person physically signs a paper contract, such documentation does not necessarily exist in the click-wrap context. (See Doc. 61-16 at 27 (noting that screenshot images for each step of membership process are not saved in USSA's computer database).) Nevertheless, courts frequently enforce such agreements. For example, in Feldman, the plaintiff challenged the validity of a forum selection clause in an electronic click-wrap agreement. 513 F.Supp.2d at 231. In support of the agreement's enforceability, the defendant relied upon an affidavit from an information technology representative familiar with the steps that the plaintiff would have needed to go through in order to create the online account that plaintiff indisputably had created. See Id. at 232-33. The representative testified that in order to complete the account sign-up process, the plaintiff would have been required to accept certain terms and conditions by checking a "Yes, I agree" box. See Id. If plaintiff had failed to check this box, he would not have been able to complete his application, activate his account, or incur charges. See Id. The representative testified that plaintiff did activate his account and had incurred charges, and the court found this evidence sufficient to authenticate the click-wrap agreement. See Id. at 232-33. 235; see also Fteja, 841 F.Supp.2d at 831, 834-35, 841 (to counter plaintiff s argument that there was no proof he agreed to forum selection clause, defendant offered similar evidence showing that plaintiff was Facebook user and could not have become one unless agreeing to Facebook's terms of use).

         Here, USSA's information technology representative and software developer, Dana Alexandrescu, was deposed and offered testimony regarding USSA's online membership process and Plaintiffs application. Ms. Alexandrescu testified that she has been familiar with USSA's website and the online membership process since its inception in 2008. She produced demonstrative exhibits of the release currently in use by USSA and testified that the same agreement has been used in USSA's online membership process since 2008. All online registrants since 2008 have been required to read and acknowledge the release by checking a box that states, "I HAVE CAREFULLY READ THE FOREGOING AND UNDERSTAND IT TO BE A LEGALLY BINDING RELEASE AND INDEMNITY AGREEMENT." (Doc. 61-16 at 10; Doc. 61-17 at 13.) Ms. Alexandrescu testified that the USSA website has never permitted a registrant to become a USSA member without checking this box. If a registrant were to not agree to the release and leave the box unchecked, the page with the release would continuously reload and ...